An Analysis of Merit Selection on State Courts

By Grace Knobler
on January 10, 2018

There are six different ways in which judges get seats on state courts: merit selection, gubernatorial appointment, partisan election, nonpartisan election, legislative appointment, and court appointment. Of these methods, merit selection has been shown to lead to the highest percentage of women and minority judges on state courts. An American Judicature Society study entitled “Racial and Gender Diversity on State Courts” found that 54.3% of minority judges on state courts of last resort and 48.5% of women judges on state courts of last resort obtained their seats through merit selection.

Approximately half of all minority and women judges on courts of last resort in 2008, and at least one-fourth of minority and women judges on lower courts, obtained their seat on the bench though a merit process. Why does a merit selection increase work? Through merit selection, it is possible to structure the system to prioritize diversity and fair representation. For example, several merit-plan states have legal provisions that ensure nomination committees take gender and diversity into account for the selection process. In the United States, Arizona, Maryland, Massachusetts, Minnesota, Missouri, Rhode Island, Tennessee, and Utah all have specific provisions that mandate diversity in court choices. In these states, nomination committees, through the merit selection process, must consider the diversity of the population of the state. Furthermore, diverse nominating commissions attract diverse applicants and select diverse nominees.

A study conducted by Malia Reddick, Michael J. Nelson, and Rachel Paine Caufield for Judicial Selection U.S., breaks down the amount of female and minority judges in each state. The study was conducted with a 10% random sample of trial court judges. The study found that in the intermediate appellate courts, more minority judges attained seats through merit selection (40.8%) than any other, but partisan elections placed more women on courts (29.3%) than any other selection process. In general jurisdiction trial courts, 35.5% of minority judges were appointed by a governor without recommendations from a nominating commission. However, more women reached the trial court bench though merit selection (30.3%).

The study also analyzed the influence of political context on judicial nominations and appointments. In 2008, 61% of judges were appointed to seats by a governor, with or without a judicial nominating commission. Democratic governors appointed slightly higher percentages of minorities (14.7%) and women (27.9%) judges than did Republican governors (11% minority, 23.6% women). Democrats appointed 31.2% women for court of last resort whereas Republicans appointed 23.3% women. Moreover, a higher percentage of women judges were selected for appellate courts in Democrat-dominated states (49.2% and 44.9% v. 27.8% and 35.2%).

The studies indicate that merit selection leads to increased representation of judges on the court. Going forward, we should look towards merit based appointments in order to increase gender parity and create a more fair, representative system.